Office of the Attorney General
State of Texas

Re: Whether a person related to a district
judge within the degree prohibited by the
nepotism statute, V.T.C.S. article 5996a, can
take employment with a community super-
vision and corrections department without
causing a violation of the nepotism statute in
light of the provisions of article 42.131 of
the Code of Criminal Procedure (RQ-473)

Dear Mr. Segrest:

You have asked us to determine whether, in light of the provisions of the Code of
Criminal Procedure article 42.131, the director of a community supervision and
corrections department may hire, without causing a violation of the state nepotism
statute, V.T.C.S. article 5996a, a person related to a district judge who sits in the same
county as the community supervision and corrections department. Your question is
based on the following facts:

1. McLennan County has four district courts, . . . each of which
can be considered as "trying criminal cases" in th[e] judicial
district;

2. On January 1, 1987, one district judge took office after his
election the previous November, and continues to serve to this
date;

3 On September 12, 1988, all of the judges appointed
[a] . . . Director [of the community supervision and corrections
department in McLennan County], a position [the same person]
holds to this date;

. . . .

5. On May 1, 1990, the Director hired the employee in question;

6. The Employee is a nephew of the Judge, being the son of the
Judge's natural brother, and is thus related within the third
degree of consanguinity.
We understand that you have received conflicting opinions, one from the general counsel
of the Texas Department of Criminal Justice and one from an attorney who has
represented McLennan County in civil matters, on whether the director's hiring of the
judge's nephew constitutes a nepotistic hiring. We conclude that the hiring is not
nepotistic.

Section 1(a) of the nepotism statute, V.T.C.S. article 5996a, states in pertinent
part as follows:

[n]o officer . . . of any . . . municipal subdivision of this State, nor
any officer or member of any State district, county, city, . . . or
other municipal board, or judge of any court, created by or under
authority of any General or Special Law of this State, . . . shall
appoint, or vote for, or confirm the appointment to any office,
position, clerkship, employment or duty, of any person
related . . . within the third degree by consanguinity, as determined
under Article 5996h, Revised Statutes, to the person so appointing
or so voting, or to any other member of any such board, . . . of
which such person so appointing or voting may be a member, when
the salary, fees, or compensation of such appointee is to be paid for,
directly or indirectly, out of or from public funds . . . of any kind or
character whatsoever.

By its terms, section 1(a) applies only to officers or judges who have actual, statutory
authority to hire personnel. Attorney General Opinion DM-163 (1992) at 1. A person
with such authority does not, even if the person attempts to delegate the authority to
another, "abdicate [its] statutory authority or control." See Pena v. Rio Grande City
Consol. Indep. Sch. Dist., 616 S.W.2d 658, 660 (Tex. Civ. App.--Eastland 1981, no
writ); Babcock & Collins, Local Government Law, 36 SW. L.J. 471, 509 (1982)
(summarizing Pena). Thus, to determine whether a community supervision and
corrections department (the department) lawfully may employ the nephew of a district
judge who tries criminal cases in the same county as the department, we must consider
who has actual, statutory authority to appoint personnel for the department.

Article 42.131 of the Code of Criminal Procedure pertains to the establishment of
community supervision and corrections departments. The article reads in pertinent part
as follows:
Establishment of Departments

Sec. 2. (a) The . . . district judges trying criminal cases in
each judicial district in the state shall establish a community
supervision and corrections department and employ district
personnel as may be necessary to conduct presentence investigations
and risk assessments, supervise and rehabilitate probationers,
enforce the terms and conditions of probation, and staff community
corrections facilities. Both the district judges trying criminal cases
and the judges of statutory county courts trying criminal cases that
are served by a community supervision and corrections department
are entitled to participate in the management of the department.

. . . .

Department Director

Sec. 4. The . . . judges shall appoint a department director.
The department director shall employ a sufficient number of officers
and other employees to perform the professional and clerical work
of the department. [Emphasis added.]

Obviously, the emphasized portions of sections 2 and 4 are inconsistent: section 2
requires the district judges to employ the personnel necessary to perform all of the tasks a
department is to perform, while section 4 requires the judges only to appoint a
department director, who, in turn, is required to employ all other necessary personnel.

We examined a similar statute in Attorney General Opinion DM-79 (1992). In
that opinion, we were asked to determine whether the Brazos County Juvenile Board has
the authority to hire employees of the Brazos County Juvenile Probation Department
after the juvenile board has employed a chief juvenile probation officer. Attorney
General Opinion DM-79 at 1. Section 152.0007(1) of the Human Resources Code,
which defines the duties of the juvenile board, requires a juvenile board to "employ
personnel to conduct probation services, including a chief probation officer and, if more
than one officer is necessary, assistant officers." On the other hand, section 152.0008(a)
of the Human Resources Code provides that the chief juvenile probation officer "may
appoint necessary personnel with the approval of the board." (Emphasis added.)
Additionally, section 152.0271(e) of the Human Resources Code provides that "[t]he
chief juvenile probation officer may set the salaries and allowances of juvenile probation
personnel with the approval of the board." (Emphasis added.) Given the applicable
provisions of the Human Resources Code, the requestor was uncertain as to whether the
board or the chief probation officer is required to employ other members of the
department, or if that duty may vary at the juvenile board's discretion. Id. at 2.

We determined that section 152.0008(a) delegates to the chief juvenile probation
officer the authority to hire assistant juvenile probation officers and other employees
subject to the juvenile board's approval. Id. Thus, while the juvenile board's authority
with respect to hiring personnel is limited to approving or rejecting the chief juvenile
probation officer's hiring decisions, it retains the actual authority for hiring personnel.
Id. at 2-3. Section 152.0007(1), which requires a juvenile board to "employ" personnel,
requires a juvenile board only to compensate, not to hire, personnel. Id. at 3. These
determinations, together with the juvenile board's role under a predecessor statute, led us
to conclude that the juvenile board, not the chief juvenile probation officer, was the
appointing authority for purposes of section 152.0008(b) of the Human Resources Code,
which empowers the "appointing authority" to terminate juvenile probation officers. Id.
at 4.

Article 42.131 of the Code of Criminal Procedure differs in two significant
respects from the sections of the Human Resources Code that we considered in Attorney
General Opinion DM-79. First, article 42.131, section 4 requires a department director
to employ officers and employees as necessary to perform the department's professional
and clerical work, whereas section 152.0008(a) merely authorizes the chief juvenile
probation officer to hire assistant juvenile probation officers and other employees.
Second, article 42.131, section 4 does not explicitly reserve to the district judges the
power to approve the department director's employment decisions, whereas section
152.0008(a) requires the juvenile board to approve (or, implicitly, to reject) the chief
juvenile probation officer's appointments.

The legislature added article 42.131 to the Code of Criminal Procedure in 1989.
See Acts 1989, 71st Leg., ch. 785, § 3.02, at 3483-86. House Bill 2335, the bill that
proposed adding article 42.131, made many changes in the structure of the criminal
justice system at the state and local levels in an effort to alleviate prison and jail
overcrowding. See Senate Comm. on Criminal Justice, Bill Analysis, C.S.H.B. 2335,
71st Leg. (1989); Attorney General Opinion JM-1185 (1990) at 1-3. Notably, while
House Bill 2335 added article 42.131 to provide for the establishment of departments, it
repealed section 10 of existing article 42.12 of the Code of Criminal Procedure, which
had provided for the establishment of local probation departments. See Acts 1989, 71st
Leg., ch. 785, §§ 3.02, 4.17, at 3483, 3519-21; Attorney General Opinion JM-1131
(1989) at 2. Both the predecessor local probation departments and the current
community supervision and corrections departments were or are designed generally to
correspond geographically to judicial districts. See Code Crim. Proc. art. 42.12, § 10(a)
(repealed by Acts 1989, 71st Leg., ch. 785, § 4.17, at 3519-21); id. art. 42.131, § 2(a);
Attorney General Opinion JM-1131 at 2.

Prior to its repeal in 1989, section 10 of article 42.12 of the Code of Criminal
Procedure provided in pertinent part as follows:

(a) For the purpose of providing adequate probation services,
the . . . district judges trying criminal cases in each judicial district
in this state shall establish a probation office and employ, in
accordance with standards set by the commission, district personnel
as may be necessary to conduct presentence investigations,
supervise and rehabilitate probationers, and enforce the terms and
conditions of misdemeanor and felony probation. . . .

(b) Where more than one probation officer is required,
the . . . judges shall appoint a chief adult probation officer or
director, who, with their approval, shall appoint a sufficient number
of assistants and other employees to carry on the professional,
clerical, and other work of the court.

Acts 1989, 71st Leg., ch. 785, § 4.17, at 3519 (emphasis added). Under the now-
repealed article 42.12, section 10 of the Code of Criminal Procedure, the district judges
clearly had authority to appoint a chief adult probation officer or director; furthermore,
the district judges clearly had authority to approve all of the chief adult probation
officer's selections for employment. While much of the language of article 42.131,
sections 2 and 4 of the Code of Criminal Procedure parallels the language of the now-
repealed article 42.12, section 10(a), (b), article 42.131, section 4 does not reserve for the
district judges any power of approval over the department director's employment
selections.

We must, therefore, clarify the use of the word "employ" in sections 2(a) and 4 of
article 42.131 of the Code of Criminal Procedure. Each section requires a particular
entity to "employ" personnel to staff the local department; however, section 2(a)
obligates the district judges trying criminal cases in each judicial district, while section 4
obligates the department director, whom the judges have appointed. We note that section
6(b) of article 42.131 of the Code of Criminal Procedure requires the judicial districts
that receive services from a department to pay the salaries of department personnel. In
our opinion, therefore, article 42.131 uses the term "employ" inconsistently. We believe
that "employ" in the context of section 2(a) refers to the responsibility of the judicial
district to compensate departmental personnel. See Attorney General Opinion DM-79 at
3 (concluding that "employ" in section 152.0007(1) of the Human Resources Code refers
only to providing compensation, not to hiring). On the other hand, "employ" in the
context of section 4 refers to the department director's obligation to hire necessary
personnel.

As article 42.131 provides the department director, not the district judges, with
actual authority to hire officers and other employees necessary to perform the
professional and clerical work of the department, no violation of the nepotism statute
occurs if the department director hires a person related within the third degree of
consanguinity to one of the district judges.

SUMMARY

Article 42.131 of the Code of Criminal Procedure requires the
director of a community supervision and corrections department to
hire the officers and other employees necessary to perform the
professional and clerical work of the department. The judges in the
judicial district that the community supervision and corrections
department serves appoint the director but have no further authority
to hire or to approve the director's hiring of additional department
personnel. The word "employ," as used in sections 2(a) and 4 of
article 42.131 of the Code of Criminal Procedure, has two different
meanings. In the context of section 2(a), "employ" refers to the
responsibility of the judicial district to compensate department
personnel. However, in the context of section 4, "employ" refers to
the department director's obligation to hire necessary personnel.

Because the judges have no authority to hire or approve the
hiring of department personnel other than the director, no violation
of the nepotism statute, V.T.C.S. article 5996a, section 1(a), occurs
if the department director hires a person related within the third
degree of consanguinity to one of the judges in that judicial district.

Very truly yours,

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General

Footnotes

1. Here, as you have stated, the district judge is related within the third degree of consanguinity to
the department employee, the son of the judge's natural brother. See V.T.C.S. art. 5996h, § 4(a)(3).

2. We also believe that the judges trying criminal cases in a judicial district are authorized to
determine the number of probation officers and other officers or employees that are necessary properly to
staff the department. See Hearings on S.B. 1169 Before the Senate Comm. on Criminal Justice, 71st Leg.
(Apr. 20, 1989) (transcript available from Senate Staff Services).